No. 06-1221

IN THE

Supreme Court of the United States

_______________________________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

210575

A((800) 274-3321 • (800) 359-6859

SPRINT/UNITED MANAGEMENT CO.,

Petitioner,v.

ELLEN MENDELSOHN,Respondent.

BRIEF FOR PETITIONER

CHRIS R. PACE

SPRINT/NEXTEL CORPORATION

6450 Sprint ParkwayOverland Park, KS 66251(913) 315-9786

JOHN J. YATES

MARK G. ARNOLD

CHRISTINE F. MILLER

JAMES F. MONAFO

HUSCH & EPPENBERGER, LLC190 Carondelet PlazaSuite 600St. Louis, MO 63105(314) 480-1500

PAUL W. CANE, JR.Counsel of Record

KATHERINE C. HUIBONHOA

HEATHER N. MITCHELL

PAUL, HASTINGS, JANOFSKY

& WALKER LLP55 Second StreetTwenty-Fourth FloorSan Francisco, CA 94105(415) 856-7000

Attorneys for Petitioner

i

QUESTION PRESENTED

Whether a district court in a disparate treatment casemust admit “me, too” evidence — testimony, by nonparties,alleging discrimination at the hands of persons who playedno role in the adverse employment decision challenged bythe plaintiff.

ii

PARTIES TO THE PROCEEDING

Ellen Mendelsohn, the plaintiff in the trial court and therespondent here, formerly was employed by, and later sued,Sprint/United Management Company, now a subsidiary ofSprint Nextel Corporation.

STATEMENT PURSUANT TO RULE 29.6

Sprint/United Management Company is a wholly ownedsubsidiary of Sprint Nextel Corporation, which issues sharesto the public. (The employer for simplicity will be referredto herein as “Sprint.”)

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TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

STATEMENT PURSUANT TO RULE 29.6 . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . vi

OPINIONS AND ORDERS BELOW . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 1

STATUTORY PROVISIONS ANDRULES INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. THE DISPUTED EVIDENCE WAS PROP-ERLY EXCLUDED AS SUBSTANTIVELYIRRELEVANT UNDER FEDERAL RULE OFEVIDENCE 401 . . . . . . . . . . . . . . . . . . . . . . 10

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A. This Court’s Cases Teach ThatDiscrimination Proof Focuses On TheBiases Of The Decisionmaker . . . . . . . . 11

1. This Court’s employment cases turnon whether discriminatory intent bya decisionmaker is shown . . . . . . . . 13

2. In a host of other contexts this Courtsimilarly has evaluated discriminationcontentions by focusing on themotivation of the decisionmaker . . 19

B. “Me, Too” Evidence Thus Is RelevantOnly Where The Proffered WitnessSheds Light On The Motivations Of ThePlaintiff’s Decisionmaker . . . . . . . . . . . 21

C. The Court Of Appeals Here StrayedFrom These Principles; The Evidence AtIssue Was Substantively IrrelevantBecause It Bore No Relationship ToMendelsohn’s Layoff Decisionmaker . . . 28

1. The five disputed witnesses couldshed no light on Mendelsohn’s layoffor Mendelsohn’s decisionmaker . . . 28

2. Mendelsohn failed to lay anyfoundation of relevance for thetestimony of the five disputedwitnesses. . . . . . . . . . . . . . . . . . . . . 31

Contents

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a. The proffered evidence was notrelevant to any common schemeor plan . . . . . . . . . . . . . . . . . . . 31

b. The proffered evidence was notrelevant as “background.” . . . . 34

c. Discrimination cases are notexempt from normal rules offoundation and relevance . . . . . 36

II. THE DISPUTED EVIDENCE WASPROPERLY EXCLUDED, GIVEN THEWIDE LATITUDE ACCORDED DISTRICTCOURTS UNDER FEDERAL RULE OFEVIDENCE 403 . . . . . . . . . . . . . . . . . . . . . . 39

A. The Evidence Would Have CausedUndue Delay And Wasted Trial Time . . . 39

B. The Evidence Would Have Created TheRisk Of Confusion Of The Issues, OrMisleading The Jury . . . . . . . . . . . . . . . 41

C. The Evidence Would Have CausedUnfair Prejudice . . . . . . . . . . . . . . . . . . 43

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Contents

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TABLE OF CITED AUTHORITIES

CASES

Aramburu v. Boeing Co.,112 F.3d 1398 (10th Cir. 1997) . . . . . . . . . . . . . . 34

Ash v. Tyson Foods, Inc.,546 U.S. 454 (2006) . . . . . . . . . . . . . . . . . . . . . . 13, 35

Balderston v. Fairbanks Morse EngineDivision of Coltec Industries,328 F.3d 309 (7th Cir. 2003) . . . . . . . . . . . . . . . . 27

Batson v. Kentucky,476 U.S. 79 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 20

Bialas v. Greyhound Lines, Inc.,59 F.3d 759 (8th Cir. 1995) . . . . . . . . . . . . . . . . . 32

Boston Stock Exchange v. State Tax Commission,429 U.S. 318 (1977) . . . . . . . . . . . . . . . . . . . . . . . 21

Brown v. CSC Logic, Inc.,82 F.3d 651 (5th Cir. 1996) . . . . . . . . . . . . . . . . . 32

Chaffin v. Stynchcombe,412 U.S. 17 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 20

City of Cuyahoga Fallsv. Buckeye Community Hope Foundation,538 U.S. 188 (2003) . . . . . . . . . . . . . . . . . . . . . . . 19

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Clackamas Gastroenterology Associates, P.C.v. Wells,538 U.S. 440 (2003) . . . . . . . . . . . . . . . . . . . . . . . 33

Clark County School District v. Breeden,532 U.S. 268 (2001) . . . . . . . . . . . . . . . . . . . . . . . 15

Clark v. Arizona,126 S. Ct. 2709 (2006) . . . . . . . . . . . . . . . . . . . . . 43

Cooper v. Federal Reserve Bank,467 U.S. 867 (1984) . . . . . . . . . . . . . . . . . . . 17, 23, 31

Crane v. Kentucky,476 U.S. 683 (1986) . . . . . . . . . . . . . . . . . . . . . . . 39

Cummings v. Standard Register Co.,265 F.3d 56 (1st Cir. 2001) . . . . . . . . . . . . . . . . . . 35

Delaware State College v. Ricks,449 U.S. 250 (1980) . . . . . . . . . . . . . . . . . . . . . . . 16

Desert Palace, Inc. v. Costa,539 U.S. 90 (2003) . . . . . . . . . . . . . . . . . . . . . . . . 14

EEOC v. U.S. Steel,649 F. Supp. 964 (W.D. Pa. 1986) . . . . . . . . . . . . 35

English v. Colorado Department of Corrections,248 F.3d 1002 (10th Cir. 2001) . . . . . . . . . . . . . . 35

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Estes v. Dick Smith Ford, Inc.,856 F.2d 1097 (8th Cir. 1988), superseded in parton other grounds, Price Waterhouse v. Hopkins,490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . . . . 35

Furnco Construction Co. v. Waters,438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . . . . . . 10

Georgia v. McCollum,505 U.S. 42 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 20

Goff v. Continental Oil Co.,678 F.2d 593 (5th Cir. 1982), overruled on othergrounds by Carter v. South Central Bell,912 F.2d 832 (5th Cir. 1990) . . . . . . . . . . . . . . . . 22

Guthrie v. Tifco Industries,941 F.2d 374 (5th Cir. 1991) . . . . . . . . . . . . . . . . 33

H. P. Hood & Sons, Inc. v. Du Mond,336 U.S. 525 (1949) . . . . . . . . . . . . . . . . . . . . . . . 21

Hamling v. United States,418 U.S. 87 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 42

Hartman v. Moore,547 U.S. 250 (2006) . . . . . . . . . . . . . . . . . . . . . . . 20

Haskell v. Kaman Corp.,743 F.2d 113 (2d Cir. 1984) . . . . . . . . . . . . . . . . 22, 44

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Hazen Paper Co. v. Biggins,507 U.S. 604 (1993) . . . . . . . . . . . . . . . . . . . . . . . 14

Hemsworth v. Quotesmith.com, Inc.,476 F.3d 487 (7th Cir. 2007) . . . . . . . . . . . . . . . 26, 27

Hernandez v. New York,500 U.S. 352 (1991) . . . . . . . . . . . . . . . . . . . . . . . 20

Kadas v. MCI Systemhouse Corp.,255 F.3d 359 (7th Cir. 2001) . . . . . . . . . . . . . . . . 35

Krchnavy v. Limagrain Genetics Corp.,294 F.3d 871 (7th Cir. 2002) . . . . . . . . . . . . . . . . 27

Ledbetter v. Goodyear Tire & Rubber Co.,127 S. Ct. 2162 (2007) . . . . . . . . . . . . . . . . . . . . 18, 19

Mangold v. California Public Utility Commission,67 F.3d 1470 (9th Cir. 1995) . . . . . . . . . . . . . . . . 32

Martin v. Citibank, N.A.,762 F.2d 212 (2d Cir. 1985) . . . . . . . . . . . . . . . . . 22

Mayor of Philadelphiav. Educational Equality League,415 U.S. 605 (1974) . . . . . . . . . . . . . . . . . . . . . . . 20

Merillat v. Metal Spinners, Inc.,470 F.3d 685 (7th Cir. 2006), cert. denied,127 S. Ct. 2973 (2007) . . . . . . . . . . . . . . . . . . . . . 43

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Meritor Savings Bank v. Vinson,477 U.S. 57 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 38

Miller-El v. Dretke,545 U.S. 231 (2005) . . . . . . . . . . . . . . . . . . . . . . . 33

Moorhouse v. Boeing Co.,501 F. Supp. 390 (E.D. Pa.), aff ’d, 639 F.2d 774(3d Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . 25, 40, 44

NLRB v. Yeshiva University,444 U.S. 672 (1980) . . . . . . . . . . . . . . . . . . . . . . . 17

New England Power Co. v. New Hampshire,455 U.S. 331 (1982) . . . . . . . . . . . . . . . . . . . . . . . 21

Nitschke v. McDonnell Douglas Corp.,68 F.3d 249 (8th Cir. 1995) . . . . . . . . . . . . . . . . . 32

O’Connor v. Consolidated Coin Caterers Corp.,517 U.S. 308 (1996) . . . . . . . . . . . . . . . . . . . . . . . 12

Old Chief v. United States,519 U.S. 172 (1997) . . . . . . . . . . . . . . . . . . . . . . . 43

Peters v. Lincoln Electric Co.,285 F.3d 456 (6th Cir. 2002) . . . . . . . . . . . . . . . . 27

Phillip v. ANR Freight Systems, Inc.,945 F.2d 1054 (8th Cir. 1991) . . . . . . . . . . . . . . . 35

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Price Waterhouse v. Hopkins,490 U.S. 228 (1989), superseded by statute in parton other grounds, Civil Rights Act of 1991,Pub. L. No 102-166, 105 Stat. 1071 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15-16, 35

Raytheon Co. v. Hernandez,540 U.S. 44 (2003) . . . . . . . . . . . . . . . . . . . . . . . . 14

Reeves v. Sanderson Plumbing Products, Inc.,530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . 13

Rivera v. City & County of Denver,365 F.3d 912 (10th Cir. 2004) . . . . . . . . . . . . . . . 26

Rivers-Frison v. Southeast MissouriCommunity Treatment Center,133 F.3d 616 (8th Cir. 1998) . . . . . . . . . . . . . . . . 32

Ryder v. Westinghouse Electric Co.,128 F.3d 128 (3d Cir. 1987) . . . . . . . . . . . . . . . . . 32

Schrand v. Federal Pacific Electric Co.,851 F.2d 152 (6th Cir. 1988) . . . . . . . . . . . . 24, 42, 44

Slattery v. Swiss Reinsurance America Corp.,248 F.3d 87 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . 32

Smith v. Stratus Computer, Inc.,40 F.3d 11 (1st Cir. 1994) . . . . . . . . . . . . . . . . . . . 35

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St. Mary’s Honor Center v. Hicks,509 U.S. 502 (1993) . . . . . . . . . . . . . . . . . . . . . . 10, 13

Stanback v. Best Diversified Products, Inc.,180 F.3d 903 (8th Cir. 1999) . . . . . . . . . . . . . . . . 26

United States v. Hale,422 U.S. 171 (1975) . . . . . . . . . . . . . . . . . . . . . . . 41

University of Pennsylvania v. EEOC,493 U.S. 182 (1990) . . . . . . . . . . . . . . . . . . . . . . 16, 37

Vasquez v. County of Los Angeles,349 F.3d 634 (9th Cir. 2003) . . . . . . . . . . . . . . . . 26

Village of Arlington Heightsv. Metropolitan Housing Development Corp.,429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . . . . . 19

Wards Cove Packing Co. v. Atonio,490 U.S. 642 (1989) . . . . . . . . . . . . . . . . . . . . . . . 37

Watson v. Fort Worth Bank and Trust,487 U.S. 977 (1988) . . . . . . . . . . . . . . . . . . . . . . . 11

Williams v. Nashville Network,132 F.3d 1123 (6th Cir. 1997) . . . . . . . . . . . 24, 41, 42

Wolf v. Buss (America), Inc.,77 F.3d 914 (7th Cir. 1996) . . . . . . . . . . . . . . . . . 43

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Wright v. Georgia,373 U.S. 284 (1963) . . . . . . . . . . . . . . . . . . . . . . . 20

Wyvill v. United Companies Life Insurance Co.,212 F.3d 296 (5th Cir. 2000) . . . . . . . . . 23, 24, 41, 42

Yates v. Rexton, Inc.,267 F.3d 793 (8th Cir. 2001) . . . . . . . . . . . . . . . . 26

STATUTES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. § 623(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 10

RULES

Fed. R. Evid. 401 . . . . . . . . . . . . . . . . . . . 1, 9, 10, 38, 45

Fed. R. Evid. 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9

Fed. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . 1, 9, 39, 45

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OTHER PUBLICATIONS

Sprint Will Cut Another 2,100 Jobs, N.Y. TIMES,Dec. 12, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Barbara Lindemann & Paul Grossman,EMPLOYMENT DISCRIMINATION LAW (4th ed. 2007) . . . 3

1

OPINIONS AND ORDERS BELOW

The Tenth Circuit’s decision is officially reported,Mendelsohn v. Sprint/United Management Co., 466 F.3d 1223(10th Cir. 2006), and is reproduced in the appendix to Sprint’spetition for a writ of certiorari (“Pet. App.”) at 1a-23a. Thecourt of appeals’ order denying Sprint’s rehearing petition isreproduced at Pet. App. 25a-26a. The district court’s minuteorder, granting Sprint’s motion in limine on the issuepresented by this appeal, is reproduced at Pet. App. 24a. Thedistrict court’s additional remarks on the issue, elaboratingon and modifying the in limine ruling as the trial progressed,are reproduced in the Joint Appendix (“J.A.”) at 279a-297a.

STATEMENT OF JURISDICTION

The district court had jurisdiction under 28 U.S.C.§ 1331. The United States Court of Appeals for the TenthCircuit issued its opinion on November 1, 2006. Sprint timelypetitioned for rehearing and rehearing en banc on November15, 2006. The court denied that petition on January 16, 2007.This Court granted certiorari on June 11, 2007. The Courthas jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONSAND RULES INVOLVED

The Age Discrimination in Employment Act is codifiedat 29 U.S.C. §§ 624-634. The relevant provisions of the Actare reproduced at Pet. App. 27a-28a. Federal Rules ofEvidence 401, 402, and 403 are reproduced at Pet. App. 29a.

2

STATEMENT OF THE CASE

Respondent Ellen Mendelsohn worked for Sprint from1989 until November 2002, most recently in the MobileFinancial Services unit within Sprint’s BusinessDevelopment Strategy group. J.A. 9a. She was laid off in areduction-in-force, as the Business Development Strategygroup downsized from 75 to 57 persons. J.A. 340a.Mendelsohn’s immediate supervisor, Jim Fee, had rated heras the weakest performer in Mobile Financial Services.J.A. 318a-319a. Fee’s manager, Sprint Assistant VicePresident Paul Reddick, decided to include Mendelsohn inthe layoff. J.A. 339a-340a.

Other Sprint units over a period of months and yearsalso downsized, as Sprint sought to cope with thetelecommunications industry’s recession. Over a period ofabout 14 months, about 15,000 employees were released, andMendelsohn never disputed that the layoffs as a whole weregrounded in “real” business necessity. See J.A. 317a-318a;Sprint Will Cut Another 2,100 Jobs, N.Y. TIMES, Dec. 12,2002, at C3. Decisions about specific affected individualswere made by the supervisors and managers responsiblefor each downsizing department or other business unit.J.A. 310a-312a, 337a-341a.

Mendelsohn was 51 when she was laid off. J.A. 129a.She filed an administrative charge with the EqualEmployment Opportunity Commission in April 2003,alleging age discrimination. J.A. 9a. The EEOC dismissedthe charge because it concluded that the evidence failed toestablish a violation of law. J.A. 14a.

3

In August 2003, Mendelsohn sued under the ADEA inthe U.S. District Court for the District of Kansas, allegingdisparate treatment based on age. J.A. 14a. She first asserted,but then abandoned, a contention of a pattern or practice ofage discrimination affecting others. Compare J.A. 7a-14a(Complaint) with J.A. 127a-154a (Pretrial Order). See D.Kan. Rule 16.2(c) (“The pretrial order . . . will control thesubsequent course of the action unless modified . . . by anorder of the court to prevent manifest injustice.”)

Before trial, Sprint moved in limine to exclude testimonyfrom five witnesses. J.A. 155a-161a. The five were formerSprint employees who would claim that they themselves hadbeen released based on age, in layoffs conducted in otherdepartments by other managers. (Such persons have beendescribed as “me, too” witnesses, e.g., Barbara Lindemann& Paul Grossman, EMPLOYMENT DISCRIMINATION LAW 72-73(4th ed. 2007).) Specifically, Bonnie Hoopes, Yvonne Wood,and Sharon Miller sought to testify that they had heard ageistremarks by one or more Sprint supervisors or managers.J.A. 343a-346a. Wood also sought to testify that she had seena spreadsheet suggesting that age was one of the criteria thatanother supervisor, Dan Kennedy, may have considered inmaking his own layoff decisions. J.A. 344a-345a. A fourthproffered witness, John Borel, sought to testify that he hadbeen given a false negative evaluation by his directsupervisor, Janet Mathis, at the behest of her own supervisor,Mohammad Hussain. J.A. 346a-347a. Borel also sought totestify that another manager, Jay Cole, had informed Borelthat Borel had been banned from working at Sprint, and thatBorel had witnessed another employee, Carol Kippes,harassed because of her age. J.A. 347a-348a. The fifthproffered witness, John Hoopes, sought to testify that he had

4

been replaced by a younger employee, and that his post-reduction-in-force job applications to Sprint had beenrejected. J.A. 348a-349a.

None of the proposed testimony concerned Mendelsohnor the Business Development Strategy group. None of thefive witnesses worked in that group. None of the five hadworked under (i) Mendelsohn’s direct supervisor, Fee (whohad rated her as the weakest employee in his unit); (ii)Reddick (the Assistant Vice President who was Fee’smanager, and who made Mendelsohn’s layoff decision); or(iii) Sprint Vice President Bill Blessing (who was Reddick’sboss, and who ran the entire Business Development Strategygroup). None of the five witnesses alleged hearing ageistremarks by Fee, Reddick or Blessing. And none of the fivehad anything else relevant to say about plaintiff Mendelsohn.Specifically:

• Bonnie Hoopes: She was laid off at about the sametime as Mendelsohn, but she did not work inReddick’s or Blessing’s chain of command, andMendelsohn did not contend that Reddick or Blessingplayed a role in Ms. Hoopes’ layoff. Ms. Hoopesadmitted that she never even had worked withReddick. J.A. 353a-354a.

• Wood: She was laid off two months afterMendelsohn. Wood, like Ms. Hoopes, did not workin Reddick’s or Blessing’s chain of command, andneither Reddick nor Blessing played a role in Wood’slayoff. Wood admitted that she never had spoken withMendelsohn and that she had no information aboutMendelsohn’s employment with or separation fromSprint. J.A. 354a-355a.

5

• Miller: She was laid off at about the same time asMendelsohn, but — like the others — Miller did notwork in Reddick’s or Blessing’s chain of command,and neither Reddick nor Blessing played a role inher layoff. Miller never had spoken with Mendelsohnand, like Wood, she had no information aboutMendelsohn’s separation from Sprint. J.A. 355a-356a.

• Borel: He was laid off approximately four monthsafter Mendelsohn’s separation. Borel worked outsidethe chain of command of Reddick and Blessing, andMendelsohn did not contend that Reddick or Blessingplayed a role in Borel’s layoff. He admitted that hedid not know Mendelsohn, and that he had noinformation about Mendelsohn’s employment orlayoff. J.A. 356a-357a.

• John Hoopes: He was laid off over nine monthsbefore Mendelsohn. Mr. Hoopes, like the rest, workedoutside Reddick’s and Blessing’s chain of command,and neither Reddick nor Blessing played a role inMr. Hoopes’ layoff. He, too, admitted that he had noinformation about Mendelsohn’s employment withor separation from Sprint. J.A. 357a.

Sprint therefore contended that none of the five witnessescould shed light on Reddick’s motives in selectingMendelsohn for layoff.

6

The district court (Vratil, J.) granted Sprint’s motionin limine in part, holding that only persons “similarlysituated” to Mendelsohn would be allowed to testify abouttheir personal circumstances. Specifically, the district courtruled that former employees who were laid off byMendelsohn’s ultimate supervisor, Reddick, in close temporalproximity to Mendelsohn’s own layoff, were similarlysituated to Mendelsohn and could testify about their ownclaims and circumstances. Pet. App. 24a. As the trialproceeded, the district court gave Mendelsohn morelatitude even than that. The court expanded its ruling topermit Mendelsohn also to introduce evidence relating todecisions made by (or under) Blessing, Reddick’s boss.J.A. 279a-297a. According to the court, this information wasrelevant to the issue of whether the RIF — as administeredby Reddick and Blessing — was a pretext for agediscrimination. J.A. 295a-296a. In admitting the evidence tothis extent, the district court considered both relevance andthe risk of jury confusion. The court found that, providedthe scope of proof was limited to Reddick and Blessing, therewas no substantial risk of confusion:

I believe it’s clear to the jury now, [or] if it’s notclear now, it certainly will be clear at the end ofthe case, that they’re only called upon to evaluatewhether Sprint discriminated against this plaintiffand plaintiff will only be allowed to argue [basedon] how other employees . . . who were similarlysituated[,] subject[] to the same decision-makerand the same RIF.

J.A. 287a. Because the five former employees Mendelsohnidentified did not fall within Reddick and Blessing’s chainof command, the district court excluded their testimony.J.A. 295a-297a.

7

Following an eight-day trial, the jury returned a verdictfor Sprint, finding that Sprint did not discriminate againstMendelsohn based on age. J.A. 406a.

Mendelsohn appealed. A panel of the Tenth Circuit (perBaldock, J.) reversed in a 2-1 decision. The majority heldthat the testimony from the five ex-employees was relevant,even though none of the five witnesses reported to or waslaid off by Reddick or Blessing, and even though none workedin the Business Development Strategy group withMendelsohn. Pet. App. 9a-10a. The majority acknowledgedthat such “me, too” evidence would be inadmissible in a casealleging discriminatory discipline. Pet. App. 7a-8a. In thecontext of a reduction-in-force, however, the majority heldthat “me, too” evidence must be admitted if there is“independent evidence” of a company-wide policy ofdiscrimination, and that the “me, too” evidence without morecomprises that “independent evidence.” Pet. App. 10a-11a.The panel majority also held that the district judge lackedthe discretion, even under Federal Rule of Evidence 403, toexclude the evidence. Pet. App. 15a-16a.

Judge Tymkovich dissented. He contended that evidenceconcerning decisions made by persons other than thedecisionmaking supervisor should be excluded except wherethere is “independent evidence of specific enterprise-widepolicy.” Pet. App. 22a. The evidence here did not establishthat Reddick or Blessing harbored discriminatory animustoward Mendelsohn, or that the RIF was a pretext for acompany-wide discriminatory policy. Thus, the dissentargued, the majority created an erroneous rule of law that“even the most tangentially relevant and prejudicial testimonyby former employees is per se admissible.” Pet. App. 23a.

8

Sprint petitioned for rehearing. The panel (again 2-1)denied rehearing, and the full court voted 7-5 to denyrehearing en banc. Pet. App. 25a-26a.

This Court granted certiorari. 127 S. Ct. 2937 (2007).

SUMMARY OF ARGUMENT

A discriminatory employment decision is made by thesupervisor or manager — the decisionmaker — exercisingdelegated authority to act for the employing entity. ThisCourt’s employment discrimination cases have foundliability, or at least a triable question of it, where the plaintiffhas presented substantial evidence of discriminatory intentby a decisionmaker. By contrast, where the decisionmaker isnot shown to be biased, no discrimination liability exists.The Court’s approach has been the same in analyzingdiscrimination contentions in diverse contexts, unrelated toemployment: A violation depends on the presence or absenceof proof (i) of discriminatory intent, (ii) by a decisionmaker.

Here, Reddick in Sprint’s Business DevelopmentStrategy group made the decision to lay off Mendelsohn.Mendelsohn sought to prove her claim of age discriminationby calling five nonparty witnesses. Each of the five wouldhave testified that he or she believed that he or she wasselected for layoff from Sprint based on age. But neitherReddick nor his boss Blessing supervised (directly orindirectly) any of the five witnesses, and Reddick andBlessing had nothing to do with the layoff decisions of anyof the five. None of the five witnesses had anything to sayabout the motivations of Reddick or Blessing, only those ofdecisionmakers in a handful of other Sprint departments. Yetthe court of appeals majority held that it was reversible error

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to exclude from evidence these discrimination allegations,(i) by persons who had no connection with Mendelsohn,(ii) against persons who had no connection with Mendelsohn.

The court of appeals majority was incorrect. Theevidence was properly excluded, and indeed it would havebeen reversible error to admit it. Evidence is not probativein a disparate-treatment case unless nexus to thedecisionmaker is proven. The better-reasoned court of appealscases thus exclude from evidence, as irrelevant under FederalRules of Evidence 401 and 402, the so-called “me, too”evidence at issue here: claims of discrimination by witnesseswho would assail the motivations of persons other than theplaintiff’s decisionmaker(s). This Court similarly should holdthat such evidence is substantively irrelevant. In concludingotherwise, the court of appeals majority engaged in circularreasoning. The majority held that “me, too” evidencebecomes admissible if there is a common scheme or plan todiscriminate — and a common scheme or plan exists if thereare “me, too” witnesses.

The lack of relevance should end the matter, but FederalRule of Evidence 403 provides an additional ground forreversing the court of appeals. The disputed evidence wouldhave caused undue delay and wasted trial time becauseadmitting the evidence would have led to trials-within-a-trialof the circumstances of the five nonparty witnesses. Theevidence also would have created the risk of confusion ofthe issues or misleading the jury, because it would havedistracted the jury from the merits (or lack thereof) ofMendelsohn’s own claim. Finally, the evidence would havecaused unfair prejudice. Jury trials arising out ofeconomically driven reductions-in-force by their naturepresent sensitive issues. The essence of a RIF is that an

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adequately performing incumbent is released when theemployer makes a judgment that it needs to cut back. “Me,too” evidence in a case such as this is unfairly prejudicial.As one often-cited lower court decision put it, “even thestrongest jury instructions could not have dulled the impactof a parade of witnesses, each recounting his contention thatdefendant had laid him off because of his age.”

For each of these reasons the district court correctlyexcluded the five disputed witnesses. The court of appealsheld otherwise, but this Court should reverse.

ARGUMENT

I. THE DISPUTED EVIDENCE WAS PROPERLYEXCLUDED AS SUBSTANTIVELY IRRELEVANTUNDER FEDERAL RULE OF EVIDENCE 401

The ADEA makes it unlawful “to discharge anyindividual . . . because of such individual’s age.” 29 U.S.C.§ 623(a)(1). This Court’s cases illuminate how “because” isproven.

If a discriminatory employment decision is made, it ismade by a supervisor or manager — the decisionmaker —delegated with authority to act on behalf of the employingentity. In an employment discrimination case “the defendantis ordinarily not an individual but a company,” St. Mary’sHonor Center v. Hicks, 509 U.S. 502, 520 (1993) (emphasisomitted), which hires supervisors and managers “and thendelegates to [them] the task of [maintaining] a competentwork force,” Furnco Construction Co. v. Waters, 438 U.S.567, 569-70 (1978). Relevant evidence therefore sheds lighton the thought processes and possible biases of the

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decisionmaker. Here, however, the court of appeals majorityheld it to be reversible error for a district court to excludefrom evidence discrimination allegations (i) by persons whohad no connection with the plaintiff, (ii) against persons whohad no connection with the plaintiff. Because the disputedevidence was irrelevant, the district court properly excludedit, as shown below.

A. This Court’s Cases Teach That DiscriminationProof Focuses On The Biases Of TheDecisionmaker.

The Court has articulated for decades a tripartiteallocation of discrimination proof in cases like this one,alleging disparate treatment. Watson v. Fort Worth Bank andTrust, 487 U.S. 977 (1988), summarized the law as follows:

In . . . “disparate treatment” cases, which involve“the most easily understood type of discrimination,”Teamsters v. United States, 431 U.S. 324, 335, n.15,97 S. Ct. 1843, 1854, n.15, 52 L.Ed.2d 396 (1977),the plaintiff is required to prove that the defendanthad a discriminatory intent or motive. In order tofacilitate the orderly consideration of relevantevidence, we have devised a series of shiftingevidentiary burdens that are “intended progressivelyto sharpen the inquiry into the elusive factualquestion of intentional discrimination.” Texas Dept.of Community Affairs v. Burdine, 450 U.S., at 255,n.8, 101 S. Ct., at 1094, n.8.

Id. at 986.

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The Court summarized the tripartite allocation:

The burden of proving a prima facie case is “notonerous,” id., at 253, 101 S. Ct., at 1094, and theemployer in turn may rebut it simply by producingsome evidence that it had legitimate,nondiscriminatory reasons for the decision.Id., at 254-255, 101 S. Ct., at 1094. If thedefendant carries this burden of production, theplaintiff must prove by a preponderance of all theevidence in the case that the legitimate reasonsoffered by the defendant were a pretext fordiscrimination. Id., at 253, 255, n.10, 101 S. Ct.,1093, 1094, n.10.

Id. The proof burden at all times rests with the plaintiff:

[T]hese shifting burdens are meant only to aidcourts and litigants in arranging the presentationof evidence: “The ultimate burden of persuadingthe trier of fact that the defendant intentionallydiscriminated against the plaintiff remains at alltimes with the plaintiff.” Id., at 253, 101 S. Ct., at1093. See also United States Postal Service Bd.of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L. Ed. 2d 403 (1983).

Id.1

1. This Court has “never had occasion to decide whether . . .application of the Title VII rule to the ADEA context is correct,”O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311(1996), but it assumed that to be so in that case. The Court similarlymay do so here, as Sprint can assume that Mendelsohn had a primafacie case. The case therefore turns on proof of the ultimate questionof pretext.

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This case requires the Court to elaborate on how the lastelement — pretext for discrimination — is proven. ThisCourt’s prior cases reveal the proper approach.

1. This Court’s employment cases turn on whetherdiscriminatory intent by a decisionmaker isshown.

A discrimination trial by its nature tests thedecisionmaker’s state of mind in acting on the employer’sbehalf. St. Mary’s Honor Ctr., 509 U.S. at 520 (“[I]n these[discrimination] cases, the defendant . . . must rely upon thestatement of an employee — often a relatively low-levelemployee — as to the central fact[,] and that central fact isnot a physical occurrence, but rather that employee’s stateof mind.”) (emphasis omitted). This Court’s cases properlyfocus on the decisionmaker, rather than on attitudes of orremarks by other persons who played no role in theemployment dispute at issue.

In Reeves v. Sanderson Plumbing Products, Inc., 530U.S. 133 (2000), for example, the Court held that the plaintiffhad raised a triable question of age discrimination in hisdischarge. It was undisputed that a particular supervisor, oneChesnut, “was the actual decisionmaker.” Id. at 152. A triablequestion arose from “evidence that Chesnut was motivatedby age-based animus,” including his statement that theplaintiff “was so old [he] must have come over on theMayflower,” and that the plaintiff “was too damn old to do[his] job.” Id. at 151.

Similarly, in Ash v. Tyson Foods, Inc., 546 U.S. 454,456 (2006) (per curiam), another discharge case, the Courtreversed summary judgment, citing potentially discriminatory

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remarks by the decisionmaker. In United States Postal Servicev. Aikens, 460 U.S. 711, 713 n.2 (1983), a case alleging racediscrimination in promotions, the Court noted that plaintiff had“introduced testimony that the person responsible for thepromotion decisions at issue had made numerous derogatorycomments about blacks in general and Aikens in particular.” InPrice Waterhouse v. Hopkins, 490 U.S. 228 (1989), supersededby statute in part on other grounds, Civil Rights Act of 1991,Pub. L. No. 102-166, 105 Stat. 1071 (1991), the Court set forthat length the evidence of discrimination in that case. It “did notsimply consist of stray remarks,” but rather discriminatorycomments from the defendant’s partners upon whom thedefendant’s Policy Board had relied in denying her partnership.Id. at 251, 256 & n.15.

Other cases are to similar effect: substantial evidence ofdiscrimination by a decisionmaker leads to liability, or atleast a triable question of it. E.g., Desert Palace, Inc. v. Costa,539 U.S. 90, 95-96 (2003) (affirming liability for genderdiscrimination under a mixed-motive theory; thedecisionmakers, plaintiff’s supervisors, earlier had stalkedplaintiff and “‘frequently used or tolerated’ sex-based slursagainst her”); Hazen Paper Co. v. Biggins, 507 U.S. 604,613 (1993) (remanding for the court of appeals to considerwhether the proffered evidence of discriminatory intent,including “comments by the Hazen[] [cousins]” who ran thefirm and decided to discharge plaintiff, raised a triablequestion of disparate treatment based on age).

By contrast, where the decisionmaker is not shown tobe biased, no discrimination liability exists. In Raytheon Co.v. Hernandez, 540 U.S. 44 (2003), for example, plaintiffHernandez sued for disability discrimination when HughesMissile Systems refused to rehire him. Hernandez earlier had

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worked for Hughes, but he had resigned in lieu of dischargeafter testing positive for cocaine in a lawful drug test.Hernandez’s personnel file did not record the results of thedrug test, only that he was discharged for unspecifiedworkplace misconduct.

More than two years elapsed. Hernandez then reappliedto work at Hughes. A human resources department employee,Joanne Bockmiller, reviewed his file and rejected hisapplication, citing Hughes’ “policy against rehiringemployees who were terminated for workplace misconduct.”Id. at 47. She testified without contradiction that she did notknow that the misconduct in Hernandez’s case was drug-related. Id.

Hernandez sued, alleging disparate treatment based onthe disability of drug addiction. The Court of Appeals forthe Ninth Circuit found a triable question of disparatetreatment, but this Court unanimously vacated the judgmentof the court of appeals. “The Court of Appeals did not explain. . . how it could be said that [the decisionmaker,]Bockmiller[,] was motivated to reject respondent’sapplication because of his disability if Bockmiller wasentirely unaware that such a disability existed,” the Courtnoted. Id. at 54 n.7. “If Bockmiller were truly unaware thatsuch a disability existed, it would be impossible for her hiringdecision to have been based, even in part, on respondent’sdisability,” no matter what other persons at Hughes mighthave known. Id.; accord Clark County School District v.Breeden, 532 U.S. 268, 272, 273 (2001) (per curiam) (noinference of retaliation could possibly be drawn because thedecisionmaker had “not become aware of the lawsuit [andright-to-sue letter that preceded it, before] . . . she proposed”the adverse action at issue); see also Price Waterhouse, 490

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U.S. at 277 (O’Connor, J., concurring) (discriminatoryremarks by someone are not probative if they are “unrelatedto the decisional process itself”). Discriminatory remarks ordecisions by others of course are unfortunate — anyenlightened employer conducts training to eradicate them —but they have no probative significance in a claim of disparatetreatment by a plaintiff, alleging discrimination at the handsof someone else.

Proper analysis of a discrimination case therefore focusesat the threshold on (i) what the adverse employment decisionis, and (ii) who made it, on the employer’s behalf. InUniversity of Pennsylvania v. EEOC, 493 U.S. 182 (1990),for example, the Court focused on the identity of thedecisionmakers: there, the senior faculty who effectivelydenied tenure to Rosalie Tung, a junior professor at theWharton School. The narrow question presented was one ofdiscovery — were academic peer-review materials privileged,or discoverable? — but in answering that question the Courtnecessarily assessed relevance. There relevance was obvious;EEOC sought to obtain “(1) confidential letters written byTung’s evaluators; (2) the department chairman’s letter ofevaluation; [and] (3) documents reflecting the internaldeliberations of faculty committees considering applicationsfor tenure, including the Department Evaluation Reportsummarizing the deliberations relating to Tung’s applicationfor tenure . . . .” Id. at 186. Those materials, which focusedon Professor Tung’s tenure decisionmakers, plainly wererelevant; “Indeed, if there is a ‘smoking gun’ to be foundthat demonstrates discrimination in tenure decisions, it islikely to be tucked away in peer review files” containingcomments of the persons who effectively controlled thetenure decision. Id. at 193; cf. Delaware State College v.Ricks, 449 U.S. 250, 257 n.8, 262 n.16 (1980) (noting that a

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physical altercation between plaintiff Ricks and hisdepartment chair, McLaughlin, could be evidence sheddinglight on the chairman’s intent in denying Ricks academictenure; “university boards of trustees customarily rely on theprofessional expertise of the tenured faculty” in makingtenure decisions); NLRB v. Yeshiva University, 444 U.S. 672,677 n.5, 686 & n.23 (1980) (university faculty memberscannot collectively bargain because they are supervisorialand managerial employees; they are the decisionmakers forthe university in matters of hiring, tenure, termination andcurriculum).

Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984),recognized that one employee’s discrimination proof differsfrom that of others, even among employees of the sameoverall entity. In Cooper, the EEOC and certain employeesof the Richmond Federal Reserve brought a race class action.The district court certified a class but then, on the merits,found no pattern or practice of discrimination. Severalindividuals later brought their own individual cases. TheFederal Reserve contended that res judicata barred theirclaims. This Court disagreed. The failure of a class actionagainst an employer does not mean that there are not validindividual cases to be brought, the Court explained.Id. at 878. In Cooper, the proof presented by some of theindividual plaintiffs — the evidence pertaining to thedecisionmakers’ biases vel non — was sufficiently dissimilarto that at issue in the failed class action, to permit thoseindividuals’ cases to be heard on their own particular merits.As this Court put it, “a piece of fruit may well be bruisedwithout being rotten to the core.” Id. at 880.

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Just last Term, in Ledbetter v. Goodyear Tire & RubberCo., 127 S. Ct. 2162 (2007), the Court unanimously reiteratedthat the focus of discrimination proof is on the decisionmaker.In Ledbetter, the Court considered whether the statute oflimitations barred a gender pay-discrimination claim. TheCourt was closely divided on that issue, but there was nodisagreement on the principles of proof that would havegoverned any trial of plaintiff’s claim. “Ledbetter asserteddisparate treatment, the central element of which isdiscriminatory intent,” the majority noted. Id. at 2167. Theissue therefore was whether one or more particularsupervisors — “the relevant Goodyear decisionmakers,” id.— had intentionally discriminated in setting plaintiff’s pay.Justice Alito’s majority opinion found the claim barred,holding that the allegedly discriminatory pay decisions weremade when they were made, id. at 2169, and that plaintiffneeded to show discriminatory intent by the decisionmaker.Proof of discrimination for dated decisions can be difficult,because “the passage of time may seriously diminish theability of the parties and the factfinder to reconstruct whatactually happened” to the plaintiff at the hands of thedecisionmaker(s). Id. at 2171. In that case, for example,“Ledbetter’s claims . . . turned principally on the misconductof a single Goodyear supervisor, who . . . by the time of trial. . . had died and therefore could not testify.” Id. at 2171 n.4.But it was that person’s intent that was at issue. A plaintiffmay not “rel[y] on the intent associated with other decisionsmade by other persons at other times,” the majority cautioned.Id. at 2169.

The dissenting justices would have held differently onthe existence of the time bar, because they would have treated“each payment of a wage or salary infected by sex-baseddiscrimination [as a new] unlawful employment practice.”

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Id. at 2179 (Ginsburg, J., dissenting). The dissenters did notdisagree, however, on how discrimination is proven on themerits. “Title VII requires a showing of intent,” the dissentersacknowledged, and as a result “Ledbetter carried the burdenof persuading the jury that the pay disparity she suffered wasattributable to intentional sex discrimination” by the personwho set her pay. Id. at 2187 (citing specific evidence ofdiscrimination on the part of two of Ledbetter’s formersupervisors-decisionmakers).

Thus, while the Ledbetter Court was divided on theproper application of the statute of limitations, the entireCourt agreed on the core substantive principle of disparatetreatment proof: (i) discriminatory intent, (ii) by adecisionmaker.

2. In a host of other contexts this Court similarlyhas evaluated discrimination contentions byfocusing on the motivation of the decisionmaker.

Discrimination contentions also arise outside theemployment context. This Court’s analytical approach hasbeen the same: evaluating whether bias by the decisionmakeris shown. This is true in cases involving allegeddiscrimination in zoning,2 discrimination in criminal

2. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538U.S. 188, 194, 196-97 (2003) (the court of appeals erred in “ascribingthe [discriminatory] motivations of a handful of citizens . . . to theCity [officials]” who ultimately decided to call a referendum on azoning issue; the discrimination plaintiffs needed to produce evidenceof discriminatory “statements made by decisionmakers or referendumsponsors during deliberation over [the referendum].”) (emphasisadded); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429U.S. 252, 265, 267 (1977) (where “discriminatory intent or purpose”is at issue, relevant evidence is that which “shed[s] some light onthe decisionmaker’s purposes”).

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prosecution,3 discrimination in political appointments,4

discrimination in jury selection,5 and discrimination

3. E.g., Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 1706(2006) (relevant inquiry in selective prosecution cases is whether an“unconstitutionally motivated inducement infected the [particular]prosecutor’s decision to bring the charge”). Compare Wright v. Georgia,373 U.S. 284, 292 (1963) (petitioners’ arrest for breach of the peaceviolated the Equal Protection Clause because “[i]t was obviously based,according to the testimony of the arresting officers themselves, upontheir intention to enforce racial discrimination”) (emphasis added) withChaffin v. Stynchcombe, 412 U.S. 17, 26-27 (1973) (refusing to imputea retaliatory motive to a criminal defendant’s new judge and juryfollowing the vacatur of his initial conviction; the danger of vindictivesentencing is “de minimis” where “the second sentence is not metedout by same judicial authority [that] handl[ed] the prior trial”).

4. Mayor of Philadelphia v. Educ. Equality League, 415 U.S. 605,619, 621 (1974) (rejecting the argument that the alleged bias of “a cityofficial who did not have final authority over or responsibility for thechallenged appointments” could be “imputed” to the official holdingthe appointment power).

5. E.g., Batson v. Kentucky, 476 U.S. 79, 95, 96 (1986) (focusingon the particular prosecutor’s use of peremptory challenges in evaluatingan allegation of race-based use of them; the peremptory-challenge system“permits [particular prosecutors] ‘to discriminate who are of a mind todiscriminate’”; the issue for a particular criminal defendant is whetherthere was discrimination “in his case,” not that of others) (emphasisomitted); Georgia v. McCollum, 505 U.S. 42, 47 (1992) (“[A] defendantmay establish a prima facie case of purposeful discrimination in selectionof the petit jury based solely on the prosecutor’s exercise of peremptorychallenges at the defendant’s trial.”) (emphasis added); Hernandez v.New York, 500 U.S. 352, 365 (1991) (“In the typical peremptorychallenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. . . .[E]valuation of the [particular] prosecutor’s state of mind [is] based on[his or her] demeanor and credibility. . . .”).

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against interstate commerce.6

B. “Me, Too” Evidence Thus Is Relevant Only WhereThe Proffered Witness Sheds Light On TheMotivations Of The Plaintiff’s Decisionmaker.

The proper approach to evaluating the disputed evidencein this case follows from the foregoing principles. At issuehere are discrimination allegations (i) by persons who hadno connection to the plaintiff, (ii) against persons who hadno connection to the plaintiff. Third-party witness testimonyof course is properly admissible if the nonparty witness’testimony sheds light on the motivation of the plaintiff’sdecisionmaker(s). But such evidence is not relevant, andtherefore not admissible, if the nonparty witnesses simplywould assail different decisionmakers who lack nexus to theplaintiff.

6. E.g., New England Power Co. v. New Hampshire, 455 U.S.331, 339 (1982) (order requiring hydroelectric energy produced inNew Hampshire to be sold therein violated the Commerce Clause,where the decisionmaker — the New Hampshire Public UtilitiesCommission — “made clear that its order [was] designed to gain aneconomic advantage for New Hampshire citizens at the expense of. . . neighboring states”); Boston Stock Exch. v. State Tax Comm’n,429 U.S. 318, 325-28 (1977) (New York statute exempting in-statesecurities transactions from transfer tax violated the CommerceClause, where the legislative history and governor’s statementsconfirmed that “the purpose of the new law was to ‘provide long-term relief from some of the competitive pressures from outside theState’”) (citation omitted); H. P. Hood & Sons, Inc. v. Du Mond, 336U.S. 525, 528, 540 (1949) (New York licensing requirement for milkprocessors violated the Commerce Clause as applied, where thedecisionmaker — the Commissioner of Agriculture and Markets —stated that the requirement was intended to curtail competition fromout-of-state processors).

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The issue regularly arises in the lower-court cases. One ofthe most cited is the Second Circuit’s decision in Haskell v.Kaman Corp., 743 F.2d 113 (2d Cir. 1984). In that case theplaintiff alleged that his supervisor discharged him because ofage. At trial, the district court permitted the plaintiff to call aswitnesses six former employees, all of whom testified that they,too, were discharged because of age. A jury awarded damagesto the plaintiff, but the Second Circuit reversed. The districtcourt should have excluded the testimony of the six formeremployees as both irrelevant and unfairly prejudicial, the courtheld: “[T]heir testimony, aside from presenting unnecessarycollateral issues, provided ‘no basis for an inference ofdiscrimination,’” because the circumstances of the six othersbore no logical relationship to the plaintiff. Id. at 121 (citationomitted); accord Martin v. Citibank, N.A., 762 F.2d 212, 217(2d Cir. 1985) (statements by individuals with no nexus to thechallenged employment decision have no bearing on theplaintiff’s claim) (citing Haskell, 743 F.2d at 121). Thus, the“me, too” evidence was “insufficient to show a pattern andpractice of discrimination.” Id. at 122.

The Fifth Circuit held similarly in Goff v. Continental OilCo., 678 F.2d 593 (5th Cir. 1982), overruled on other groundsby Carter v. South Central Bell, 912 F.2d 832 (5th Cir. 1990).In that case plaintiff sued for race discrimination. The districtcourt declined to permit plaintiff to present testimony from threewitnesses, each of whom wished to contend that he or she alsowas a race discrimination victim. Defendant won at trial, andplaintiff appealed. The Fifth Circuit affirmed the district court,holding that the proffered “me, too” evidence simply was notrelevant because it shed no light on plaintiff’s circumstances.Explained the Fifth Circuit:

To prevail he had to show that Conoco purposefullydiscriminated against him. The witnesses Goff

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wanted to call could not testify as to Conoco’smotive, intent, or purposefulness in failing topromote Goff. None of them had worked with Goffat Conoco, and none had any knowledge of Goff’sexperience or relationship with the company. All thewitnesses could have testified to was their ownindividualized dealings with Conoco. Because nonehad worked in Goff’s department, their testimonywould not have concerned the same supervisors ofwhom Goff complained. Because this testimonywould not have related to the issue of whether Goffsuffered discrimination, the court did not err inrefusing to admit this testimony.

678 F.2d at 596-97.

The Fifth Circuit more recently elaborated on that rulein Wyvill v. United Companies Life Insurance Co., 212 F.3d296 (5th Cir. 2000). In that case two plaintiffs sued for agediscrimination. The district court permitted plaintiffs to elicit“testimony pertaining to other employees in other branchesof the company who held different positions under differentsupervisors,” all of whom contended that they, too, weredischarged based on age. Id. at 298. Plaintiffs prevailed attrial and were awarded damages. The Fifth Circuit reversedand granted a new trial because “[s]horn of this. . . irrelevant evidence, the judgment cannot stand.” Id.Plaintiffs contended that the testimony was relevant becauseit tended “to show that United Companies, a company of2700 employees, had ‘a pattern or practice’ of discriminatingagainst older workers.” Id. at 302. The court rejected thecontention; “A ‘pattern or practice’ of discrimination doesnot consist of ‘isolated or sporadic discriminatory acts bythe employer.’” Id. (quoting Cooper, 467 U.S. at 875).

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“Anecdotes about other employees cannot establish thatdiscrimination was a company’s standard operating procedureunless those employees are similarly situated to the plaintiff,”the court held. 212 F.3d at 302. That was not the case inWyvill; “testimony from former employees who had differentsupervisors than the plaintiff, who worked in different partsof the employer’s company, or whose terminations wereremoved in time from the plaintiff’s termination cannot beprobative of whether age was a determinative factor in theplaintiff’s discharge.” Id.

The Sixth Circuit said the same thing in Williams v.Nashville Network, 132 F.3d 1123 (6th Cir. 1997). Theplaintiff in that case alleged race discrimination in hiring.He sought to buttress his case by calling as a witness anotherAfrican-American applicant, who also had not been hired.The district court excluded the evidence, and the Sixth Circuitaffirmed. Considerations such as whether the plaintiff andwitnesses applied for the same position, and whether theydid so at the same time, were part of the court’s ultimateinquiry as to whether the plaintiff and the disputed witnesshad the same decisionmaker. Id. at 1130. Because theproffered evidence involved a different position, requiringdifferent qualifications, and a different decisionmaker, it had“no apparent connection” to plaintiff’s application foremployment and thus was properly excluded. Id.

In an earlier case from the same court, Schrand v. FederalPacific Electric Co., 851 F.2d 152 (6th Cir. 1988), the courtreasoned similarly. The plaintiff was laid off from hisjob along with others as the business downsized byapproximately 33%. Id. at 154. Plaintiff sued, alleging agediscrimination. At trial, plaintiff sought to buttress his casewith testimony from two other older workers who were laid

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off from two other sites within approximately a year ofplaintiff’s own layoff. The two testified that they had heardtheir own supervisors make discriminatory, ageist comments.The jury ruled for plaintiff and awarded damages. The SixthCircuit reversed and granted a new trial, holding that thetwo witnesses’ testimony was irrelevant. The courtemphasized that the plaintiff and nonparty witnesses did notshare the same decisionmaker-supervisor: the “me, too”witnesses worked in different geographical areas than theplaintiff, under different supervisory chains. Thus, the courtconcluded, “there was no evidence from which the allegedstatements of the witnesses could logically or reasonably betied to the decision to terminate Schrand.” Id. at 156. Inlanguage equally applicable to the instant case, the courtexplained: “The fact that two employees of a nationalconcern, working in places far from the plaintiff’s place ofemployment, under different supervisors, were allegedly toldthey were being terminated because they were too old, issimply not relevant to the issue in this case.” Id.

Another of the most-cited decisions on the issue is anearly district court case summarily affirmed by the ThirdCircuit, Moorhouse v. Boeing Co., 501 F. Supp. 390, 392(E.D. Pa.), aff ’d, 639 F.2d 774 (3d Cir. 1980). That case,like the instant one, alleged age discrimination in a layoff.Plaintiff sought to introduce testimony from five otheremployees laid off at the same time, each alleging that he,too, was laid off based on age. The district court excludedthe evidence, and the trial resulted in a defense verdict. Thecourt denied a new trial motion that alleged evidentiary error,and the Third Circuit affirmed; “[T]o the extent testimonyof each witness was about his own lay off, it was not relevantto [plaintiff]’s lay off,” the district court declared. Id. at 392.

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These cases fit comfortably within the taxonomy ofdiscrimination proof applied in other contexts. Courts requirenexus to the decisionmaker before assigning probative valueto discriminatory remarks,7 comparative evidence,8 statistical

7. Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489, 491(7th Cir. 2007) (holding not probative discriminatory remarks by personswho played no role in plaintiff’s layoff decision, including commentsmade during a conversation between Quotesmith’s general counsel anda human resources official regarding the large number of employeesover 40 years old who were being laid off; to “provide an inference ofdiscrimination” a discriminatory remark must be “(1) made by thedecision maker, (2) around the time of the decision, and (3) in referenceto the adverse employment action”); Yates v. Rexton, Inc., 267 F.3d793, 799 (8th Cir. 2001) (affirming summary judgment in a case allegingage discrimination in layoff; Yates presented “the statements of various[company] managers about him specifically and about age in general,”including remarks by a supervisor named Zei; but it was a differentdecisionmaker, Wright, who made the decision to include Yates in thereduction-in-force, without input from Zei or anyone else, so as a resultany bias by Zei or others was not probative); Vasquez v. County of LosAngeles, 349 F.3d 634, 640 (9th Cir. 2003) (affirming summaryjudgment; plaintiff relied on obviously discriminatory remarks by oneof the defendant’s senior staff, Berglund; however, “Berglund was notthe decisionmaker, and Vasquez has offered no evidence ofdiscriminatory remarks made by [the decisionmaker,] Leeds.”).

8. E.g., Rivera v. City & County of Denver, 365 F.3d 912, 922(10th Cir. 2004) (“Comparisons of actions taken by other supervisorswould have no probative value regarding the motivation for actions bya particular supervisor. Accordingly, we conclude that the general rule— that employees cannot be considered similarly situated unless theyshare the same supervisor — applies in this case . . . .”); Stanback v.Best Diversified Prods., Inc., 180 F.3d 903, 910 (8th Cir. 1999) (affirmingsummary judgment; proffered comparators, who reported to supervisorsdifferent from plaintiff’s, were not probative of discrimination; “Whendifferent decision-makers are involved, two decisions are rarely similarlysituated in all relevant respects.”) (quoting Harvey v. Anheuser-Busch,Inc., 38 F.3d 968, 972 (8th Cir. 1994)).

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proof,9 and supposedly mendacious explanations for adverseemployment decisions.10 In all of those contexts the evidenceis probative, or not, based on its nexus to the decisionmaker.

9. Balderston v. Fairbanks Morse Engine Div. of Coltec Indust.,328 F.3d 309, 320 (7th Cir. 2003), for example, held:

In order to be considered, the statistics must look at thesame part of the company where the plaintiff worked;include only other employees who were similarly situatedwith respect to performance, qualifications, and conduct;the plaintiff and the other similarly situated employees musthave shared a common supervisor; and the treatment ofthe other employees must have occurred during the sameRIF as when the plaintiff was discharged.

Accord Hemsworth, 476 F.3d 487, 492 (7th Cir. 2007) (statistics mustbe drawn from persons affected by the same supervisor-decisionmaker;“Statistical evidence is only helpful when the plaintiff faithfullycompares one apple to another without being clouded by thoughts ofApple Pie ala Mode or Apple iPods.”).

10. E.g., Peters v. Lincoln Electric Co., 285 F.3d 456, 474 (6thCir. 2002) (the defendant’s chief financial officer, Elliott, demotedplaintiff based on certain performance-related dissatisfactions; plaintiffsought to prove mendacity with affidavits from and evaluations by theemployer’s former executives, praising his performance; the court heldthat, because plaintiff had not proven a shifting articulatednondiscriminatory reason by Elliott, the decisionmaker, the evidencewas not probative; “It is simply stating the obvious to observe that whatmay have satisfied one management regime does not necessarily satisfyits successor, and Plaintiff’s proffered evidence does not serve to rebutLincoln’s current management’s view regarding Peters’ insufficient skillsto continue performing in the Controller position.”) (emphasis omitted);Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876-77 (7th Cir.2002) (affirming summary judgment; inaccuracies and false andinconsistent statements made by plaintiff’s supervisor (Anderson), andthe HR manager (Wittig) regarding plaintiff’s termination raised no

(Cont’d)

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C. The Court Of Appeals Here Strayed From ThesePrinciples; The Evidence At Issue Was SubstantivelyIrrelevant Because It Bore No Relationship ToMendelsohn’s Layoff Decisionmaker.

The district court properly excluded — indeed, it wouldhave been prejudicial error to admit — testimony from thefive former employees Mendelsohn proffered as witnesses.

1. The five disputed witnesses could shed nolight on Mendelsohn’s layoff or Mendelsohn’sdecisionmaker.

Neither Mendelsohn’s supervisor (Fee), the layoffdecisionmaker (Reddick), nor Reddick’s own boss (Blessing)supervised (directly or indirectly) any of the five disputedwitnesses. The five were laid off as many as nine monthsbefore Mendelsohn, or as many as three months after. Noneof the five worked in the Business Development Strategygroup, and no one in the Business Development Strategygroup had anything to do with their layoffs. Three of the fivewitnesses sought to testify that they had either heard or beensubjected to discriminatory ageist remarks by their varioussupervisors. Neither Blessing, Reddick nor Fee was allegedto have uttered those or similar remarks, and Mendelsohnnever heard any ageist remarks herself. One of the threewitnesses sought to testify that she had seen a spreadsheet

triable question of pretext because neither Anderson nor Wittigparticipated in the termination decision; “An inference of pretext maybe permissible only when decisionmakers make false or inconsistentstatements about the circumstances of a particular employmentdecision.”) (emphasis in original).

(Cont’d)

29

from a supervisor, to whom she did not report, suggestingthat age was one of the criteria that particular supervisor mayhave considered in making layoff decisions. The supervisorin question did not work in the Business DevelopmentStrategy group. A fourth employee sought to testify that hehad information that he had been given a false negativeevaluation; that he had been banned from working at Sprint;and that he had witnessed harassment of another employeebecause of her age. None of these allegations had anythingto do with Blessing, Reddick, Fee, or anyone else in BusinessDevelopment Strategy. The fifth employee sought to testifythat he had been replaced by a younger person, and that hisrepeated post-RIF job applications all were turned down.None of this pertained to Blessing, Reddick, Fee, or anyonein the Business Development Strategy group.

By contrast, the relevant evidence in the case focusedon the decisionmaker. That was Reddick but, as noted, thedistrict court eventually permitted both sides also to introducetestimony pertaining to decisions at the time of the layoffsby both Reddick and his boss, Blessing. Thus, for example,the jury heard evidence that Blessing was instructed to cutcosts by 30% in Business Development Strategy; that heidentified specific jobs as superfluous; that he decided toconsolidate two units and make other structural changeswithin Business Development Strategy; and that an adverse-impact analysis had been conducted to measure the incidenceof the RIF within Business Development Strategy. J.A. 319a-324a, 326a-332a, 333a-334a. Each layoff decision underBlessing was open to examination at trial. J.A. 292a-294a.Mendelsohn thus was allowed to introduce a spreadsheetcontaining the ages of every laid-off employee in Blessing’sgroup, including those who were not under Reddick’ssupervision. J.A. 279a-297a, 298a-300a, 326a-332a. Her

30

counsel, relying on the spreadsheet, questioned Sprint witnessesabout the layoffs of two protected-age individuals, DougReinhardt and Marc Elster. J.A. 300a-305a, 326a-327a. Reddickhad played no role in those layoff decisions; Reinhardt and Elsterwere Reddick’s peers. J.A. 332a-333a.

Sprint was accorded similar latitude. Sprint pointed out thatolder workers within Blessing’s Business Development Strategygroup were not disfavored; indeed, the oldest person in eachjob level within Blessing’s group survived the RIF. J.A. 335a-336a. The jury also heard evidence that, at about the time of thelayoff, Reddick accepted older workers into the BusinessDevelopment Strategy group or assisted them in findingpositions in other units as transfers. J.A. 312a-317a, 336a-337a,338a-339a. In fact, the number of employees in Reddick’s groupwho were over age 50 actually doubled following the transfersthat Reddick accepted during the reorganization within theBusiness Development Strategy group. J.A. 335a. That of coursewas relevant because it tended to disprove that Reddick harboredany animus against older workers.

Mendelsohn in the past has contended that the evidentiaryfocus, limited to decisions within Business DevelopmentStrategy, had the effect of portraying Sprint’s decisionmakingin a favorable light. That contention demonstrates no vice inthe district court’s evidentiary ruling, however, but rather that— whatever may have occurred elsewhere — Reddick andBlessing simply did not engage in age discrimination.11

11. This is not to say that Sprint entirely agrees with the districtcourt’s evidentiary test. Sprint believes that the district court erredby expanding too much the scope of the trial, over Sprint’s objection.

(Cont’d)

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2. Mendelsohn failed to lay any foundation ofrelevance for the testimony of the fivedisputed witnesses.

If Mendelsohn’s proffered evidence — say, the ageistremarks — were accurately reported, Sprint condemns them.It does not follow, however, that such evidence has anythingto do with Mendelsohn’s own discrimination claim. Thedefense jury verdict demonstrated that Sprint did notdiscriminate against Mendelsohn herself. The profferedevidence at the very worst hinted that Sprint’s equal-opportunity record might have “bruise[s]” elsewhere, Cooperv. Federal Reserve Bank, 467 U.S. 867, 880 (1984), butMendelsohn failed to lay the evidentiary foundation of nexusbetween any such bruises and her own particular claim.

a. The proffered evidence was not relevantto any common scheme or plan.

The court of appeals majority thought the evidencerelevant because it tended to show a common scheme or planto discriminate. Pet. App. 5a-6a. It certainly is true that, ifthere is evidence of a common scheme or plan — say, an

Reddick was the decisionmaker, and the proper scope of proof shouldhave focused on his decisions only. That is what the district courtoriginally ruled in limine. Later, however, the court also allowedabout decisions made or approved by Reddick’s boss, Blessing. Sprintbelieves that the district court actually gave Mendelsohn too muchevidentiary latitude, but the defense verdict renders moot Sprint’sbelief that it, rather than Mendelsohn, was the party legitimatelyaggrieved over the scope of the evidence allowed at trial.

(Cont’d)

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expression of ageist attitudes by senior management,12

provided that they are accompanied by foundational proof thatthey likely tainted decisionmaking in the particular plaintiff’scase13 — a district court in an appropriate case could find a link

12. E.g., Rivers-Frison v. Southeast Mo. Cmty. Treatment Ctr.,133 F.3d 616, 621 (8th Cir. 1998) (reversing summary judgment fordefendant based in part on the plaintiff’s allegation that thedefendant’s Acting Director allegedly made a racially discriminatorystatement); Mangold v. Cal. Pub. Util. Comm’n, 67 F.3d 1470, 1475(9th Cir. 1995) (affirming jury verdict for plaintiffs where allegedlyageist statements by the company President/Executive Director gaverise to “reasonable inferences” that the plaintiffs were deniedpromotions based on age); Ryder v. Westinghouse Elec. Co., 128F.3d 128, 130-34 (3d Cir. 1987) (affirming jury verdict for plaintiff indischarge case alleging age discrimination; ageist statements by the CEOand persons speaking for him were relevant; even though the speakerswere not decisionmakers in plaintiff’s discharge, a jury could find thatthey set forth a company policy followed by others); cf. Slattery v. SwissReinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001) (affirmingsummary judgment despite finding that the district court failed to accordsufficient weight to discriminatory statements by the Chief Executive;“When a major company executive speaks, ‘everybody listens’ in thecorporate hierarchy. . . .”) (quoting Lockhart v. Westinghouse CreditCorp., 879 F.2d 43, 54 (3d Cir. 1989)).

13. See, e.g., Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.1996) (affirming summary judgment notwithstanding “age-relatedremarks allegedly made to [plaintiff] by CEO Kimzey”; the remarkswere “vague and remote in time,” and hence not probative); Nitschke v.McDonnell Douglas Corp., 68 F.3d 249, 251, 252 (8th Cir. 1995)(affirming summary judgment even though the company president yearsearlier had written a document that among other things outlined amanagement initiative to hire and retain “the best young people”; plaintifffailed “to prove a causal relationship between [the document] and hislayoff”); Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 763-64 (8th Cir.1995) (affirming summary judgment in a discharge case alleging age

(Cont’d)

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between a plaintiff’s circumstances and those of others.Cf. Miller-El v. Dretke, 545 U.S. 231, 253, 263 (2005) (analyzingdiscrimination in jury selection; the appearance of discriminationdrawn from statistical and comparative evidence in thisparticular case “is confirmed by widely known evidence of thegeneral policy of the Dallas County District Attorney’s Officeto exclude black venire members from juries”).

There was no such evidence in this case, however. Thiswas not a pattern-or-practice case, and Mendelsohn simply failedto lay the proper evidentiary foundation to establish the relevanceof the circumstances of the five disputed witnesses. Absent thatevidentiary foundation, the circumstances of the five wereirrelevant. Sprint respectfully suggests that the court of appeals’reasoning was “completely circular and explain[ed] nothing,”Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S.440, 444 (2003) (citation omitted). According to the court ofappeals majority, “me, too” evidence becomes admissible if thereis a company-wide scheme or plan — and such a scheme orplan necessarily exists if there are “me, too” witnesses. But proofof a pattern or practice requires “more than the mere occurrenceof isolated . . . or sporadic discriminatory acts.” Int’lBrotherhood of Teamsters v. United States, 431 U.S. 324, 336(1977). The five “me, toos” here, none with any nexus toMendelsohn or persons who arguably were decisionmakers asto her, thus at worst would allege just those sorts of “isolated”or “sporadic” acts.

(Cont’d)discrimination, even though the CEO had written a memo stating that“people over 45 years of age, including myself, generally have seriousdifficulty adjusting to change”; the discharge decision was made byanother supervisor, and plaintiff failed to prove a link between the memoand the discharge); Guthrie v. Tifco Indus., 941 F.2d 374, 378-79 (5thCir. 1991) (affirming summary judgment despite arguably discriminatoryremarks by the retiring CEO Brown; there was no reason to believe thatthe successor CEO adhered to the views expressed).

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Equally unpersuasive was the majority’s effort toreconcile its opinion with prior Tenth Circuit precedent. Thatcourt in the past had correctly analyzed relevance based onwhether the proffered proof involved the same supervisor-decisionmaker. E.g., Aramburu v. Boeing Co., 112 F.3d 1398,1404 (10th Cir. 1997). Aramburu was inapposite, accordingto the majority, because that case involved an allegation ofdiscriminatory discipline, and this one involves an allegationof discrimination in layoff. Pet. App. 7a-9a. That is adistinction without a difference. Both scenarios involveemployment decisionmaking by individual supervisorsaccording to their particular assessments of business needs.Thus, both RIF and discipline cases — indeed all cases ofalleged disparate treatment — test the decisionmaker’s stateof mind. The rules of relevance do not vary based on thenature of the adverse employment action at issue. The courtof appeals majority seemed to believe that employers indiscipline cases make decentralized decisions, but that inlayoff cases company-wide master plans are imposed fromthe top. Certainly one could conceive of such a case, but thelayoffs here were not of that sort. Decisionmaking wasdecentralized (J.A. 310a-312a, 341a), and Mendelsohntherefore failed to lay the foundation necessary to linkevidence of one department’s supposed biases to decisionsmade in another.

b. The proffered evidence was not relevantas “background.”

Sprint anticipates that Mendelsohn will contend that thecircumstances of the five disputed witnesses have someperipheral relevance as “background,” relevant to show a“climate” or “atmosphere.” But the Federal Rules of Evidenceimpose more rigor than analytically foggy concepts like these.

35

Cf. Ash v. Tyson’s Foods, Inc., 546 U.S. 454, 457 (2006)(rejecting an “unhelpful and imprecise” standard forevaluating discrimination evidence). Disciplined analysis offacts at a trial can be tainted by injecting inflammatory claimsuntethered to a plaintiff’s particular circumstances. Beforesuch evidence may be admitted, the proponent must lay —not assume — the foundation of relevance. The proponent,using evidence rather than supposition, must link anysupposed “background” to the specific act and scene featuringthe plaintiff and his or her decisionmaker.

Without that foundational link, the evidence should beexcluded. See, e.g., Kadas v. MCI Systemhouse Corp., 255 F.3d359, 360 (7th Cir. 2001) (affirming summary judgment in agediscrimination case arising out of a RIF; the claim that plaintiff’semployer “had an age-discriminatory ‘culture’” was insufficientto establish a prima facie case); English v. Colo. Dep’t of Corr.,248 F.3d 1002, 1010 (10th Cir. 2001) (affirming summaryjudgment; there was no demonstrated nexus between an alleged“culture of racial hostility” and plaintiff’s discharge); Smith v.Stratus Computer, Inc., 40 F.3d 11, 18 (1st Cir. 1994) (affirmingsummary judgment; plaintiff’s claim that her supervisor’scomment “suggest[ed] a ‘men’s club’ atmosphere” wasirrelevant because her supervisor played no role in thetermination decision); EEOC v. U.S. Steel, 649 F. Supp. 964,967 (W.D. Pa. 1986) (granting summary judgment in a RIF case;plaintiff’s claim of “an age-biased atmosphere” bore norelationship to “the decision-maker’s motivation for the[RIF]”).14

14. Thus, cases like Cummings v. Standard Register Co., 265F.3d 56, 63 (“atmosphere”) (1st Cir. 2001), Phillip v. ANR FreightSys., Inc., 945 F.2d 1054, 1056 (8th Cir. 1991) (“background”), andEstes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1102 (8th Cir. 1988)(“climate”), superseded in part on other grounds, Price Waterhousev. Hopkins, 490 U.S. 228, 241-42 (1989), should be disapproved.

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The court of appeals majority thought the disputed evidencemight be enough to cause a jury to “raise an eyebrow” at thecircumstances of Mendelsohn’s own layoff. Pet. App. 14a. Butdiscrimination proof must be analyzed with precision, notphysiognomical allusions, Ash, 546 U.S. at 457-58(disapproving a standard for assessing proof that requiredevidence “virtually to jump off the page and slap you in theface”). Nor, in any event, was the disputed evidence sufficientto cause anyone to “raise an eyebrow.” Sprint laid off morethan 15,000 employees in a series of RIFs over more than 14months during the telecommunications industry’s implosion. Itis hardly surprising that Mendelsohn could find five otherpersons — 0.003% of that total — who would claim that Sprintselected them because of their age.

c. Discrimination cases are not exempt fromnormal rules of foundation and relevance.

Mendelsohn likely will contend that a decisionmaker’sstate of mind is not easily proven, so she should be givenlatitude to stray from normal evidentiary principles. ThisCourt’s cases provide the two dispositive responses.

First, while it is true that “the question facing triers offact in discrimination cases is both sensitive and difficult[as] [t]here will seldom be ‘eyewitness’ testimony as to theemployer’s mental processes,” “none of this means that trialcourts or reviewing courts should treat discriminationdifferently from other ultimate questions of fact.” UnitedStates Postal Service v. Aikens, 460 U.S. 711, 716 (1983).“The law often obliges finders of fact to inquire into aperson’s state of mind,” this Court said, and “The state of aman’s mind is as much a fact as the state of his digestion. . . .[I]f it can be ascertained it is as much fact as anything else.”Id. at 716-17 (citation and internal quotation omitted).

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Second, probing a decisionmaker’s state of mind is whatdiscovery is for:

Some will complain that [a] specific causationrequirement is unduly burdensome on[discrimination] plaintiffs. But . . . discovery . . .give[s] plaintiffs broad access to employers’ recordsin an effort to document their claims. . . . Plaintiffsas a general matter will have the benefit of thesetools to meet their burden of showing a causal linkto a protected-group status such as race or age.

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657-58(1989) (adverse impact case), superseded by statute on othergrounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105Stat. 1071; accord Tex. Dep’t of Cmty. Affairs v. Burdine,450 U.S. 248, 258 (1981) (assigning the plaintiff the burdenof proof will not mean that meritorious complaints gounproven; the “discovery rules applicable to any civil suit infederal court are supplemented in a Title VII suit by theplaintiff’s access to the Equal Employment OpportunityCommission’s investigatory files”); Univ. of Pa. v. EEOC,493 U.S. 182, 193 (1990) (ordering discovery of auniversity’s peer-review files in a tenure dispute, becausethat is where any evidence of discriminatory intent is likelyto be found).

As shown above, a discrimination plaintiff must lay thefoundation for a proffered witness by showing a link betweenthat witness and plaintiff’s own circumstances anddecisionmaker. Here, discovery provided Mendelsohn a fulland fair opportunity to establish that link, but she could notdo it. The necessary evidentiary foundation therefore did notexist.

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Mendelsohn’s real purpose in proffering the five disputedwitnesses — and the prejudice that would have resulted if,erroneously, they had been permitted to testify — thusbecomes clear. Mendelsohn lacked the accepted forms ofproof of the decisionmaker’s motive, so she sought to sullythe corporate defendant in the jury’s eyes with allegationsby others, against others. Whether those other allegationswere factually accurate or not is beside the point. They shedno light on Mendelsohn’s decisionmaker’s motivations inselecting her for layoff, and yet if erroneously admitted in ajury trial they would have caused great prejudice. FederalRule of Evidence 401 provides that relevant evidence musthave some tendency in reason to make a “fact that is ofconsequence to the determination of the action more probableor less probable than it would be without the evidence.” Thedisputed witnesses here had nothing at all to do with the“fact . . . of consequence” — the decisionmaker’s motive —and it was irrelevant for that reason.

The rule resulting from this case should be simple andcategorical: “me, too” evidence always is inadmissible,absent a demonstrated link between it and the specificdecision challenged by the plaintiff and plaintiff’sdecisionmaker.15 Because the district court here properly

15. The instant case is an individual disparate treatment case,not a hostile-environment harassment case. Thus, this Court neednot decide whether a different rule of relevance applies in thatcontext. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57, 61(1986) (noting, without deciding the issue, that “the District Courtdid not allow [Vinson] to present wholesale evidence of a patternand practice relating to sexual advances to other female employeesin her case in chief”) (internal quotation omitted). And, of course,nothing in this case affects established principles of procedure in

(Cont’d)

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excluded the proffered evidence, the jury verdict in Sprint’sfavor should be reinstated.

II. THE DISPUTED EVIDENCE WAS PROPERLYEXCLUDED, GIVEN THE WIDE LATITUDEACCORDED DISTRICT COURTS UNDERFEDERAL RULE OF EVIDENCE 403

The disputed evidence should have been excluded asirrelevant for the reasons set forth above. The court of appealsheld, however, that such evidence not only was admissible,it never may be excluded, even under Federal Rule ofEvidence 403. But Rule 403 provides that district courtsshould exclude otherwise-admissible evidence, “if itsprobative value is substantially outweighed by the danger ofunfair prejudice, confusion of the issues, or misleading thejury, or by considerations of undue delay, waste of time, orneedless presentation of cumulative evidence.” This Courtshould not have to reach the Rule 403 issue, but Rule 403provides a further reason to reverse the court of appeals.

A. The Evidence Would Have Caused Undue DelayAnd Wasted Trial Time.

This Court regularly has noted the broad discretiondistrict courts have to exclude evidence that will undulyconsume trial time, especially where trials-within-a-trialwould occur. E.g., Crane v. Kentucky, 476 U.S. 683, 689-90

bona fide class actions, where it has long been established thatanecdotal evidence supplements statistical proof to “[bring] the coldnumbers convincingly to life.” Teamsters v. United States, 431 U.S.324, 339 (1977). The instant case is not a class action or pattern-or-practice-case, as the Pretrial Order revealed. J.A. 127a-154a.

(Cont’d)

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(1986) (district judges have “wide latitude to excludeevidence that is . . . only marginally relevant or poses anundue risk of . . . prejudice [or] confusion of the issues”)(citation and internal quotation omitted).

The admission of the kind of disputed evidence hereneedlessly would burden the courts. Trials would expandsubstantially in size if district courts must permit trials-within-a-trial on the circumstances of nonparty witnesses.For every piece of evidence a plaintiff presented as to a“me, too” witness, the employer would be entitled to counterwith what might be called “not you, either” evidence, to rebuttheir claims. The employer would have to be allowed topresent, for each of the witnesses, testimonial anddocumentary evidence of performance shortcomings or skillslimitations, whatever led the decisionmaker to put thatindividual on the layoff list. The employer also would beentitled to introduce proof about other older workers whowere not laid off, to show that older workers as a group werenot disfavored. All this injects into the case witnesses whohad no involvement with the plaintiff, and documentaryevidence that had no bearing on the plaintiff. Thereafter, theplaintiff in turn could produce additional testimonial anddocumentary evidence in reply to the various components ofthe defendant’s showing. As the court described inMoorhouse, this would compound the case geometrically,by requiring numerous trials-within-a-trial:

Had the Court permitted each of the proposedwitnesses to testify about the circumstancessurrounding his own lay off, . . . Defendants thenwould have been placed in the position of eitherpresenting the justification for each witnesses’ layoff, or of allowing the testimony to stand

41

unrebutted. This latter alternative, of course,would have had an obvious prejudicial impact onthe jury’s consideration of [plaintiff’s] case. Tohave pursued the former option, defendants wouldhave been forced, in effect, to try all six casestogether with the attendant confusion andprejudice inherent in that situation.

501 F. Supp. at 393 (footnote omitted).16

As a result, numerous courts of appeals have held thatRule 403 is a proper basis for excluding “me, too” evidence.E.g., Wyvill, 212 F.3d at 303 (trial court’s admission of thisevidence entitled defendant “to respond to each witness’sclaims, and creat[ed], in effect, several ‘trials within a trial’”;these “mini-trials were not probative on the issue of whether[the plaintiffs] faced discrimination”); Williams, 132 F.3d at1130 (the admission of “me, too” evidence would haverequired the defendant to present testimony explaining whya nonparty witness had not been hired).

B. The Evidence Would Have Created The Risk OfConfusion Of The Issues, Or Misleading The Jury.

This Court similarly has recognized that district courtshave broad discretion to exclude even relevant evidence thatcould be misleading or confusing. In United States v. Hale,422 U.S. 171 (1975), for example, the introduction of

16. Trials-within-a-trial already occurred to some extent, whenthe trial judge expanded the scope of evidence beyond Reddick’s layoffdecisions to the entire Blessing organization. Sprint was forced to gothrough the entire list of Business Development Strategy group layoffsto demonstrate no age discrimination as to any older worker in thatgroup. See supra note 11.

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evidence regarding the defendant’s silence at the time of hisarrest created an intolerably high risk of jury confusion.“The danger,” this Court explained, “is that the jury is likely toassign much more weight to the [challenged evidence] than iswarranted. And permitting the defendant to explain . . . isunlikely to overcome the strong negative inference that the juryis likely to draw. . . .” Id. at 180; see also Hamling v. UnitedStates, 418 U.S. 87, 127 (1974) (in criminal prosecution ofdefendants charged with mailing obscene materials, district courtdid not abuse its discretion in refusing to admit allegedlycomparable materials; courts have “considerable latitude” inrejecting or limiting evidence that “would tend to create moreconfusion than enlightenment in the minds of the jury”).

The disputed evidence here risks confusion of the jury,because the proliferation of claims (and claimants) distracts thejury from a proper focus on the circumstances of the plaintiff.Here again the Tenth Circuit majority departed from the ruleapplied in similar cases. See Williams, 132 F.3d at 1130(“me, too” testimony was both irrelevant and properly excludedunder Rule 403 in any event; “[T]he testimony would have ledto a confusion of the issues . . . .”); Schrand, 851 F.2d at 156(“[T]he testimony tended to confuse the issue by focusing thejury’s attention on two totally unrelated events, a considerationunder Rule 403. . . . [T]here was a distinct danger that the jurywould assume a connection that was never proven between theterminations of the two witnesses and that of Schrand.”);Wyvill, 212 F.3d at 303 (“By admitting this evidence, the districtcourt substantially prejudiced [defendant]. . . . [These witnesses]distracted attention from the fact that they had little to say about[plaintiffs’] terminations.”).

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C. The Evidence Would Have Caused UnfairPrejudice.

Finally, this Court has recognized that “well-establishedrules of evidence permit trial judges to exclude evidence if itsprobative value is outweighed by certain other factors such asunfair prejudice.” See Clark v. Arizona, 126 S. Ct. 2709, 2732(2006); accord Old Chief v. United States, 519 U.S. 172, 180(1997) (adopting the Advisory Committee’s statement thatevidence should be excluded as unfairly prejudicial if it creates“an undue tendency to suggest decision on an improper basis,commonly, though not necessarily, an emotional one”).

The disputed evidence here would cause unfair prejudice,particularly in a reduction-in-force case like this one. The essenceof a RIF is that an adequately performing incumbent is releasedwhen the employer makes a judgment that it needs to cut back.Rarely can an employer defend a RIF case with proof of anemployee’s incompetence or misconduct; if the employee wereunfit for the job, he or she already would have been discharged.See, e.g., Wolf v. Buss (Am.), Inc., 77 F.3d 914, 924 (7th Cir.1996) (affirming summary judgment; “These flaws [inperformance] were not serious enough to call for [theemployee’s] immediate dismissal, but when [the company] wasfaced with [the need to reduce force] these flaws naturallyfigured into [the company’s] decision regarding which serviceengineer to let go.”); Merillat v. Metal Spinners, Inc., 470 F.3d685, 694 (7th Cir. 2006) (“Even if Ms. Merillat’s performancewas sufficiently acceptable to justify retaining her in better times,that consideration does not establish that Metal Spinners’ reasonsfor terminating her in a RIF situation were pretextual.”), cert.denied, 127 S. Ct. 2973 (2007).

It logically follows that most any RIF plaintiff can presenta plausible argument that he or she could have retained

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employment if only the decisionmaker had used other selectioncriteria or weighed them differently. The possibility of second-guessing is endless. As a result, in any RIF axiomatically therewill be personable, sympathetic and attractive persons, notincompetent or unethical, each with a story to tell about how heor she sacrificed for the company, only to be released in aneconomically motivated cutback. Juror sympathy to theseindividuals is inevitable, and Rule 403 exists to prevent unfairprejudice to the defendant employer. As the Sixth Circuitexplained in Schrand:

[T]he impact of the two former employees’testimony would be great. Thus, even if that evidencewere relevant, we believe its probative value wassubstantially outweighed by the danger of unfairprejudice flowing from its admission. Although ithad no direct bearing on the issue to be decided —whether [plaintiff] was discharged because of hisage — this testimony embellished the circumstantialevidence directed to that issue. . . . [with] anemotional element that was otherwise lacking as abasis for a verdict in [plaintiff]’s favor.

851 F.2d at 156.

Armed with the plaintiff and a band of “me, toos,” plaintiff’scounsel in a layoff case will indict the company for committingmanagement. For the trial to be fair, district judges must retainthe discretion to declare that such proof is unfairly prejudicial.As the Second Circuit said in a similar case, reversing a juryverdict for plaintiff abetted with “me, too” proof: “‘[E]ven thestrongest jury instructions could not have dulled the impact ofa parade of witnesses, each recounting his contention thatdefendant had laid him off because of his age.’” Haskell, 743F.2d at 122, quoting Moorhouse, 501 F. Supp. at 393 n.4.

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The court of appeals was plainly wrong in holding it to bereversible error to exclude the disputed evidence under Rule403.

CONCLUSION

This Court should reverse the court of appeals and reinstatethe jury verdict. The proffered evidence was substantivelyirrelevant under Rule 401. It was not reversible error to excludesuch irrelevant evidence; to the contrary, it would have beenreversible error to admit it. Alternatively, and at a minimum,the district court did not abuse its discretion in excluding theevidence, given the wide latitude accorded trial judges underRule 403.

Respectfully submitted,

PAUL W. CANE, JR.Counsel of Record

KATHERINE C. HUIBONHOA

HEATHER N. MITCHELL

PAUL, HASTINGS, JANOFSKY

& WALKER LLP55 Second StreetTwenty-Fourth FloorSan Francisco, CA 94105(415) 856-7000

Attorneys for Petitioner

CHRIS R. PACE

SPRINT/NEXTEL CORPORATION

6450 Sprint ParkwayOverland Park, KS 66251(913) 315-9786

JOHN J. YATES

MARK G. ARNOLD

CHRISTINE F. MILLER

JAMES F. MONAFO

HUSCH & EPPENBERGER, LLC190 Carondelet PlazaSuite 600St. Louis, MO 63105(314) 480-1500